Dukh-i-zhiznik Exemption =
No Photo on Driver's License?  NOT!

In 1977 Benjamin Stackler, requested no photo on his California driver's license due to his fundamentalist religious belief. He was denied. His research found the case of John Shubin who won a similar case in 1964, which established a case precedent.

What is very confusing in the public record is that Shubin erroneously testified in court that his religion was "Molokan," while Shubin's secret Dukh-i-zhiznik faith opposes the Molokan faith. Such dis-information creates a false impression of the actual Molokan faith. See Taxonomy of 3 Spiirtual Christian Groups: Molokane, Pryguny and Dukh-i-zhizniki.

Stackler, who lived in Sacramento, looked for Molokans and soon found and attended the Molokan prayer hall in San Francisco a few times. Fortunately for him these were authentic Molokans who did not shun him. He consulted with Molokan elders and historian Ethel Dunn in Berkeley (one of the few world experts on Russian sectarians at that time), formed his own congregation (of one person?), and even acquired a kosovorotka (Russian men's peasant shirt). With new information, Stackler appealed his case in 1980 at which Dunn testified, and won in 1984 — Stackler v. Department of Motor Vehicles (1980) 105 Cal.App.3d 240, 245, 164 Cal.Rptr. 203.

Had Stackler lived in Southern California, he would not find authentic Molokane, but would have approached Dukh-i-zhizniki camouflaged as Molokans. The most aggressive and fearful Dukh-i-zhizniki would have chased him away from their meetings, and some probably accusing him of being a government spy. His case would probably had ended, unless he figured out that the real Molokane in San Francisco are a different faith, open to outsiders. Then he would have to travel 400 miles. He also may have figured out that it was a Dukh-i-zhiznik who opposed government photos, not Molokane, and dropped his case because Dukh-i-zhizniki would probably not have helped him. So he was lucky to have been in Northern California and not know the difference between these different faiths.

Stackler never had contact with Dukh-i-zhizniki in Southern California, who falsely claim that their faith is Molokan, and where some falsely believed that the government honored their secret faith with a "special" photo exception.

Dukh-i-zhizniki logic is ironic because they want the label "Molokan" while opposing the Molokan faith. They want to hide their faith from the government under a false label, yet brag about it in court and the press. Most ironic is that all American Dukh-i-zhizniki have photos and display many photos of themselves, even on the Internet. The argument about a driver's license photo was a single isolated incident won by a very zealous man (Shubin) during the mid-1960s when the U.S. was in a turmoil and transition over human and civil rights, the Vietnam war was openly protested, and the most zealous and paranoid Dukh-i-zhizniki were preparing and exodus to Australia to flee a nuclear holocaust.

Shubin, and the few who followed his example of what can be called a "protest by photo," contrasted with the vast majority who shared their secret faith. In fact, most Maksimisty who migrated to the US in the early 1900s had passports with photos. A few fled Russia with no official papers, and some of those were not allowed into the US but were able to get into Mexico. In contrast with their spiritual brothers who believed in prophesies to go South, all American Dukh-i-zhizniki who migrated to Australia or traveled abroad, had photos on government passports. In contrast with Russian Dukh-i-zhizniki, none in the Former Soviet Union ever protested government photos on their documents.

The history of opposition by Russian sectarians to icons and the evolution of this trait should be noted, particularly the use of a blank (white) icon which some use to represent the Holy Spirit. Not mentioned in these news reports or court cases is a prophesy in Los Angeles in the early 1900s which ordered all believers to burn their photos. Though hundreds of family photos were destroyed in backyard incinerators, many were not. The symbolism in Dukh-i-zhiznik oral history that any image, or icon, is evil often reappears, as it did again with Shubin who became obsessed with his photo. The opposite of an image — no image at all — a white handkerchief is used often by and familiar to most Dukh-i-zhizniki today. White handkerchiefs are often placed "by the Spirit" on walls in prayer halls and homes. White towels are also hung on walls. A few congregations of Pryguny in the Former Soviet Union place a white cloth on their prayer rug, or in place of a decorated prayer rug on the floor during service. Dukh-i-zhizniki only use the white cloth symbol on walls and for selective anointment by the Holy Spirit.

Again, two opposing Russian sectarian faiths in California claim the label "Molokan", which is very confusing. One faith is authentic Molokan, the other is not. Only a few members of the Dukh-i-zhiznik faith ever requested exception of their photos on a California driver's license, after Shubin set an example for his "protest by photo" zealotry. 

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Before the Homeland Security Act of 2002, 15 states allowed exemptions for photos on drivers licenses. In June 2003, the DMV denied the exception to Dukh-i-zhiznik Jack Valov who thought it was a special Dukh-i-zhiznik "Molokan exception." He appealed the ruling with attorney Paul Martin Orloff. In September 2005 his appeal was denied, and he learned that American Dukh-i-zhizniki are not the only religion denied. A few Muslims also believed their religion had the same special exception.

Read the appeal ruling Valov v. Department of Motor Vehicles and news: 

• 2003 Oct 30 — DMV Press Release
  
• 2003 Oct 31 — Sacramento Bee
  
• 2003 Nov 18 — Los Angeles Times
  
• 2003 Nov 21 — Wildcat, University High School, Los Angeles
• 2003 Nov 24 — San Francisco Chronicle  (Interview with Stackler)
• 2005 Sep 20 — Metropolitan News-Enterprise  (Valov v. Department of Motor Vehicles)
  

American Dukh-i-zhiznik historians George Mohoff and Jack Valov counted less than 10 California Dukh-i-zhizniki who used this exemption in 2005, out of less than 2000 who may attend a religious meeting during a year. The DMV reports a little less than 20 photo exemption requests from all faiths in California, therefore about half were Dukh-i-zhizniki.

Shubin was a Dukh-i-zhiznik-Maksimist, not a Molokan. Labeling this the "Molokan exception" in the press misrepresents the Molokane who do not ask for the photo exception nor ever considered government photos to be taboo.

The Stackler case impacted California case law and has been cited in at least 10 subsequent pleadings and legal documents regarding privacy, reach of law and  proposed law.

• 1989 Nov 17 — Wilkinson v. Times Mirror Corp. — whether an individual's constitutional right of privacy has been violated depends first on a determination whether that individual had a personal and objectively reasonable expectation of privacy which was infringed
• 1991 May 6 — United Paramedics of LA v. City of LA — publication of facial photographs on driver's licenses invades no reasonable expectation of privacy
• 1997 Jun 1 — Loder v. City of Glendale — requirement that driver’s license contain photograph of licensee does not “implicate any of the excesses at which the constitutional provision protecting the right of privacy is directed”.
• 1998 Mar 13 — Opinion, California Attorney General — Administrative officials have only those powers that have been expressly conferred, that are necessary for the due and efficient administration of powers expressly granted, or that may fairly be implied from the statute or regulation granting the powers
• 2000 Feb 2 — Orange County Superior Court interpretations —  finding of implied powers occurs only when "reasonably necessary" to carry out the powers expressly granted
• 2001 Nov 2 — County of Santa Clara v. Deputy Sheriffs' Assn. — if a public officer is charged by statute with carrying out a duty, he or she has the additional powers that may be fairly implied from the statute to accomplish the task expressly granted.
• 2001 Dec 21 — Analysis of Impact of A.B. 1349 on Right to Privacy — no reasonable expectation of privacy in that which is already public
• 2004 Feb 4 — Gimbrone v. DMV — The grounds for refusing to issue a license are the same for original licenses and renewals
• 2005 Sep 20 — Valov v. DMV — in light of public safety concerns and the state’s interest in protecting its citizens’ identities, it could no longer provide him with a religious exemption. Note that Stackler challenged the photograph requirement on grounds other than the First Amendment right.
• 2007 Sep 27 — Sheehan v. SF 49ers — pat-down searches are invasion of privacy

Department of Motor Vehicles Press Release — October 30, 2003

California DMV Seeks To Overturn Court Exemption For Driver License Without Photo

California Department of Motor Vehicles
Media Relations Office
2415 First Avenue, Sacramento, CA 95818 

SACRAMENTO — Saying the world has changed since 9/11, the Department of Motor Vehicles is seeking to overturn a 1984 court ruling that allowed a California motorist on religious grounds to obtain a driver license without his photograph on it. 

"In the wake of 9/11," said DMV Director Steven Gourley, "it is imperative that every California driver license include a full face photograph of the individual so law enforcement and security personnel can verify the identity of the individual holding that document." 

In 1984, a Sacramento County Superior Court judge granted Benjamin Stackler an exemption from a state law requiring all driver licenses and ID cards to have a full face photograph, based on Stackler's insistence that taking his photograph violated his free exercise of religion. Claiming to be an elder in his own sect of the [Dukh-i-zhiznik] Molokan faith, in which some members believe that the second commandment against graven images forbids making pictures of individuals, Stackler sued the DMV to require that a license be issued to him without a photo and that it be renewed. He had tried previously in 1980 to have the court grant him a non-photo license on different grounds —  his right to privacy. He lost that earlier bid in the Court of Appeals. So he refiled on freedom of religion grounds. Superior Court Judge Ronald Tochtermann upheld Stackler's argument and ordered the DMV to issue him a non-photo license and to grant future renewals.

Even before 9/11, the DMV had already begun systematically reviewing its millions of photo records for accuracy and to verify that all existing licenses and ID cards include a photograph. Stackler's license came up for normal renewal, and was flagged by the DMV as it did not include a photograph. When he produced a nearly 20 year old court order granting him a license without a photo, the department instituted legal action to require him to submit a photograph to renew his license. The DMV petition was filed Wednesday afternoon in Sacramento County Superior Court.

Gourley said the DMV is not singling out anyone based on religious practices. He said the law requiring a photograph applies equally to all citizens, regardless of their religious beliefs. "It was a different world two decades ago when that earlier court decision was handed down," said Gourley. "That was before identity theft became a national epidemic, threatening the financial security of every American. And it was before 9/11 made it absolutely imperative that anyone boarding an airliner show a valid photo ID."

By Dan Smith — Sacramento Bee Deputy Capitol Bureau Chief — Friday, October 31, 2003

DMV moves to require photos on all licenses

The requirement would not violate religious freedom, the filing says.

Seeking to overturn a 19-year-old court decision involving religious freedom, the California Department of Motor Vehicles on Thursday filed legal action to require all motorists to have photographs on their driver's licenses.

All but 18 of the state's 22.6 million drivers have photos on their licenses. But state officials, in a filing in Sacramento Superior Court, contend the court action is necessary because of "a dramatic increase in terrorism (and) an increased reliance on identification photographs by institutions from police to banks."

The DMV's move comes as the outgoing Davis administration continues to weather criticism over its approval of a bill allowing undocumented immigrants to get driver's licenses. And it comes just months after a Florida court ruled against a Muslim woman who refused to remove her veil for a driver's license photo.

The California fight began in 1980 when Davis resident Benjamin Stackler refused to be photographed for his license and sued, arguing his right to privacy. He lost but returned to court claiming that he had begun subscribing to the [Dukh-i-zhiznik] Molokan religion, which prohibits graven images.

In 1984, Sacramento Superior Court Judge Ronald Tochterman ordered the DMV to issue the photoless license. The department, then under Gov. George Deukmejian's administration, did not appeal.

But times have changed, DMV Director Steven Gourley said Thursday, and the state now believes every license must carry a picture instead of the "Valid Without Photo" printed across the ID carried by Stackler and several others in the state.

Gourley said he became aware that some motorists had licenses without photographs about a year ago, but he decided to make a stand when Stackler's license recently came up for renewal.

Gourley said photo-less licenses "didn't make much sense in the '80s" because of the possibility of identity theft, but concern "has become much more intense after 9/11. This is an important step against terrorism. It's an important step against identity theft and identity fraud."

DMV records show only 18 California licenses are photo-less. And some of those drivers, according to Gourley, may be dead, living out of state or no longer driving.

The DMV's move, he said, is not an attempt to mute criticism over the new law for undocumented immigrants. "It has nothing to do with any other issue," Gourley said.

Stackler could not be reached for comment.

But his attorney, William D. Kopper, questioned the DMV's reopening of the case when so few Californians have photo-less licenses. Those who do, he said, would certainly be well-known to law enforcement.

"It's just another example of the state trying to exert its governmental authority over someone's personal freedoms," Kopper said.

In its legal filing, the DMV argued that requiring photographs on licenses does not violate the free exercise of religion guaranteed in the First Amendment and that the U.S. Supreme Court on several occasions since 1984 has upheld states' rights to adopt regulations that affect religious practices.

Requiring photos, the filing states, is essential for police to prevent crimes, identify suspects and enhance airport security, and for banking officials to enforce provisions of the U.S.A. Patriot Act.

In the Florida case, which is under appeal, a judge upheld Florida officials' revocation of a driver's license for a Muslim woman who declined to be photographed without a veil covering her face.

In defense of the woman, the American Civil Liberties Union has argued that courts in at least three other states — Colorado, Indiana and Nebraska — allowed photo-less licenses for Christians who claimed religious freedom under the Second Commandment, which forbids worship of graven images.

About the Writer: The Bee's Dan Smith can be reached at (916) 321-5249 or smith@sacbee.com 

By Caitlin Liu, Los Angeles Times — November 18, 2003 — Page B2

California 
BEHIND THE WHEEL 

DMV Puts No-Photo Driver's Licenses to the Test 

The agency is challenging a court decision that has allowed some to avoid being photographed for religious reasons. 

For 20 years, Benjamin Stackler remained anonymous in a way that few Californians could. By court order, he was not required to have a photo on his driver's license. 

But now, the Berkeley resident's refusal to have his picture taken — on the grounds that it is barred by his religion — has earned him notoriety within the Department of Motor Vehicles, which is heading to court to ensure that the state has every last one of its 22.6 million motorists on file. 

"We're just not going to issue any more driver's licenses without photos," said DMV Director Steven Gourley. "A driver's license is a privilege, and if you want it, you have to play by the rules." 

Stackler's attorney, Bill Kopper, counters that the DMV is interfering with his client's freedom to practice his faith. "People's religious rights are being impinged upon in the name of national security. Where is it going to stop?" 

[PHOTO Caption:]

PHOTO FINISH: Marlon Aguilar has his picture taken before taking the driver's license test at the South Hope Street DMV office.Fewer than 20 motorists in California, many members of the [Dukh-i-zhiznik] Molokan faith, have until recently been exempted from being photographed.  
PHOTOGRAPHER: Al Seib Los Angeles Times 

California is the latest battleground between motorists and the government over the issue of photographic identification. 

Until recently, at least 15 states — including Washington, Indiana and Nebraska — granted driver's licenses to motorists who refused to be photographed on religious grounds, according to the American Civil Liberties Union of Florida, which represented a Muslim woman who refused to sit before a camera without her full-face veil. But in June, a Florida judge ruled that the woman, Sultaana Freeman, could not obtain a driver's license unless she removed her veil for the photo. 

Stackler's case pits the state of California against the Second Commandment, which some Christian sects have interpreted as prohibiting any "graven image," such as a photo. 

"It presents an interesting issue ... involving a significant constitutionally protected right," said professor Jesse Choper, an expert on religious freedom at UC Berkeley's Boalt Hall School of Law. "A case like this has the potential of going all the way to the California Supreme Court." 

Since 1958, California law has mandated that a valid license bear a full-face picture of the driver, according to the DMV. But in the 1960s, after followers of the [Dukh-i-zhiznik] Molokan faith protested that sitting for a photo interfered with their observance of the Second Commandment, the DMV created an exemption for followers of the Christian sect. It was granted if an applicant could present certification signed by an elder in the [Dukh-i-zhiznik congregation] Molokan church, according to the agency's policy at the time. 

Stackler first tried to avoid DMV cameras in the late 1970s by arguing that the picture would violate his privacy rights. A judge threw out that petition. 

But Stackler returned to court a few years later, saying he was an elder in his own Molokan sect. 

In 1984, a Sacramento Superior Court judge found his religious beliefs to be sincere and ordered the agency to grant him a license without a photo. 

But this year, DMV officials balked. 

"It's a completely unsafe practice to issue driver's licenses ... without a photograph," said Gourley, the agency director, contending that photos deter fraud, allow law enforcement officers to act more quickly and reduce the risk of terrorist attacks. "It's about time the DMV took a stand on this." 

In June, the DMV rescinded its [Dukh-i-zhiznik] "Molokan exemption" in an administrative action that affected fewer than 20 motorists, who now must be photographed if they wish to renew their licenses. 

To overturn Stackler's court order, which was unaffected by the administrative action, the DMV's attorneys filed a lawsuit on Oct. 30 in Sacramento Superior Court, arguing that religious beliefs do not excuse people from complying with the law. 

"The request to obtain a license without a picture now takes place against the backdrop of a different world, where threats from perils such as identity theft and terrorism make the practice especially precarious," the lawsuit said. 

In an interview, Stackler said he would fight vigorously to keep his license photo-free. He demurred when asked his age, profession or association with the [Dukh-i-zhiznik] Molokan faith.

He also declined to categorize his religious beliefs, other than calling himself "a biblically oriented person" who lives by Psalms and Proverbs. 

[Dukh-i-zhiznik] Molokan, a Christian sect with roots in Russia, has 30,000 to 50,000 followers in California, Oregon and Arizona, according to Ethel Dunn, executive secretary of Berkeley-based Highgate Road Social Science Research Station, which has published books on the religion. 

According to Dunn and a Los Angeles member of the [Dukh-i-zhiznik] Molokan community, only a small minority within the faith refuses to sit for [government] photos. But a common trait among many is an intense desire for privacy. [Particularly the most conservative faction of Maksimisty. But all have many family photos.]

"We are a pretty low-profile group of people. We don't want any extra attention brought to us," said the [Dukh-i-zhiznik] Molokan man, whose father is a church elder and who would speak only on the condition that his name not be published. 

"We want to give glory to God, not to us." 

The member, who does not know Stackler, said he and many [Dukh-i-zhiznik] Molokans have photos on their driver's licenses. But the DMV's actions make life difficult for "true believers," he added. "They strongly believe a picture is a graven image and it would conflict with their beliefs." 

Others question just how much a driver's license photo would deter crime. 

"The people who did the hijacking on 9/11 — all of them had licenses with photos, and that didn't stop them," said Kopper, the attorney. 

If you have a question, gripe or story idea about driving in Southern California, write to Behind the Wheel c/o Los Angeles Times, 202 W. 1st St., Los Angeles, CA 90012, or send an e-mail to behindthewheel@latimes.com.

Despite Beliefs, Drivers’ Licenses Need Pictures

Chip Johnson — San Francisco Chronicle — Monday, November 24, 2003

DMV pulls religious exemption Photos now required for all driver's licenses 

Benjamin Stackler is one of a handful of California motorists whose right to hold photoless driver's licenses issued to them under a religious exemption is now being challenged by a security-minded state Department of Motor Vehicles. 

The Berkeley man's objections stem from his religious beliefs, which he says are based on his adherence to  [a Dukh-i-zhiznik faith] the Molokan Church, a sect that follows strict Biblical interpretation and considers photographs a violation of the Second Commandment outlawing any "graven image." 

After a seven-year legal battle two decades ago, a Sacramento Superior Court ruled in his favor and he was issued a photoless identification in 1984. 

But nearly 20 years later, Stackler's exempt status, along with recent religion-based challenges in other states, is on a collision course with officials at every level of government whose focus is on heightened security measures since the Sept. 11 attacks. 

If the national climate is a barometer for Stackler's chances, he may be in for quite a tussle. A Muslim woman in Florida lost a similar challenge last June. Sultaana Freeman said removing her veil for a driver's license photo was prohibited by her religious beliefs. 

And, despite the precedent set by religious exemptions in more than a dozen states since the early 1980s, the trend among motor vehicle department officials is geared toward a whole lot more security and whole lot fewer exemptions. 

Consider the main topic at the next national forum of the American Association of Motor Vehicle Administrators: "Driver's License and Identification Security." The industry organization, which represents virtually every DMV in the country, has pledged to pick up the tab for up to five representatives from each member organization. 

Although our new celebrity governor fired state DMV chief David Gourley soon after his first gubernatorial action of repealing the state's car tax, the state agency is not expected to change its position on license photographs under its new chief administrator, said spokesman Bill Branch. 

Stackler's attorney, Bill Kopper of Davis, said the state's legal foundation rests on an Oregon case that allowed government to intervene under a reduced standard of a compelling state interest. 

Kopper maintains that his client's status should be unaffected by the ruling. 

But for all the reasons that Stackler believes he should stick to his principles, there are an equal number of reasons that he should sit on the stool and get his picture taken like everyone else. 

Already been photographed 

Unless there is a caveat to "knowingly" submitting to a photograph, Stackler — and probably Freeman, too — have already broken the rules. 

Given the technology that is inextricably tied to our daily lives, a fact even Stackler begrudgingly admitted in a telephone interview, there is little left to his argument other than sheer principle. 

That's because his "graven image" has probably been captured at least 1,000 times already. 

If Stackler has ever been to a bank or used an ATM machine, shopped at a grocery or convenience store, visited a mall or walked into an airport, train or bus station — and that's a short list — his photograph has been recorded. 

His photo has been captured in black and white and in color, from most reasonable angles. It's been viewed in real time, run forward, backward, in slow and fast motion. And if the security guard was bored, he might have drawn a mustache on it. 

Can't remember photos 

When I asked Stackler if he's ever willingly submitted to a photograph, I got the strangest answer. 

"I can't recall," he said. 

If I'd spent 27 years of my life avoiding the camera lens, I think I'd remember, but hey, that's just me. 

Still, Stackler's attorney pretty easily shredded the state agency's security argument by pointing out that virtually all of the 19 terrorists who carried out the coordinated attacks in Washington, D.C., and New York City held valid driver's licenses and it didn't stop a thing. 

Who can argue that point? But it seems odd that Stackler can concede that his photo has likely already been captured for an eternity, or until it's taped over, but still hold on to a principle that has become a moot point. 

Perhaps practical reasoning is allowed, living by his strict religious codes. I have a couple of firm beliefs as well. 

Reasonable to ID drivers 

One of them is this: It is completely reasonable to ask someone who operates a vehicle on a public street to register both man and machine, and submit to being photographed to identify both. 

And for critics who say such policies are converging with the Bush administration's frenzied call for heightened security and the U.S. Patriot Act, I'd completely agree with you. 

Americans can travel from state to state without much hassle, and maybe we suffer from a collective deception, because virtually all of us carry papers, documents and cards that have identified us, and our property, all our adult lives. 

E-mail Chip Johnson at chjohnson@sfchronicle.com or write to him at 483 Ninth St., Suite 100, Oakland, CA 94607.